TRADE UNIONS AND THE STRUGGLE FOR ASSOCIATIONAL SPACE IN

UGANDA:THE 1993 TRADE UNION LAW

A DRAFT PAPER

(NOT TO BE QUOTED)

JOHN-JEAN BARYA

Senior Research Fellow, Centre for Basic Research &

Head, Department of Public and Comparative Law, Makerere

University, KAMPALA.

February, 2000

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1. 0 INTRODUCTION

In 1993 Uganda's interim parliament the NRC (National Resistance Council) passed the

Trade Union Laws (Miscellaneous Amendments) Statute 1993.1 This Statute represented two

major developments. On the one hand it allowed several hitherto non-unionisable categories

of workers both in the private and public sectors to be unionisable. On the other hand it

created room for representation of workers in that interim parliament, the NRC.

The purpose of this paper is to establish the forces behind the enactment of that statute and in

particular the role that workers and their trade unions played vis-a-vis other forces, especially

the state and employers. Closely related to this objective is the fact that at the time this statute

was passed there was also a constitution-making programme in place since 198822 to which

workers and trade unions, among others, contributed. The provisions in the 1995 Constitution

(the draft of which was debated in the Constituent Assembly between 1994-1995) relating to

workers organisational rights also further expanded the associational space available to

workers. Once again, to what extent were workers and unions responsible for the enactment

of those provisions in the Constitution?

More specifically this paper seeks to answer the following questions:

1. To what extent were workers and trade unions responsible for the generally positive

provisions in the 1993 trade Union Law and the 1995 Constitution? Why were they

relatively successful?

2. What forces were opposed to the expansion of workers' organisational/associational space

under the 1993 law and the 1995 Constitution; why and to what extent did they succeed

or fail?

3. To what extent have workers and trade unions utilized the expanded associational space?

Where have they succeeded and where have they failed and why?

4. What role has government human rights policy on the one hand (on workers rights and

human rights in general) and ' on' the other hand its economic environment (especially on

SAPs, economic policy and liberalisation, privatisation and encouraging foreign

investors) played in advancing or impeding the realisation of space and rights created by 1 Statute 10 of 1993.2 This is when the Uganda Constitutional Commission was set up under Statute 5/1988, to gather views and make proposals for a new constitution.

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the 1993 law and 1995 Constitution?

In order to answer the above questions, it is proposed to divide this paper into 5 sections. The

first section is this introduction. The second section looks at the 1993 trade union law, the

forces behind it and those opposed to it and explains the relative success achieved by

workers. Section 3 looks at the provisions of Article 40(3) of the 1995 Constitution, the

forces that were ranged against it and for it and again why workers turned out relatively

successful. The provisions are analysed in light of the fact that at the time of Constituent

Assembly debates workers were represented both in the NRC and the Constituent Assembly.

Section 4 looks at the practical implication of the 1993 law and Article 40(3) of the

Constitution. To what extent has the new organisational space been utilised? What are the

opportunities and the obstacles? Under this section we also look at three specific issues

arising out of the two laws, as examples among the many other issues, namely:

a) Of what importance has workers' representation in parliament and the CA

been?

b) How has the expanded associational space helped workers to deal with the

whole problem of privatisation?

c) How have workers/unions handled the problem of recognition in light of the

provisions of the new laws?

Section 5 is the conclusion. In this paper we conclude that whereas the amendment to the

1993 law and the constitution-making process were state initiatives, the workers and trade

unions through organisation, persistence and consistency were able to extract several

advantages from the making of the laws. However their success was limited because their

representation is limited and not organically linked to the trade unions and NOTU in

particular. For this reason they have not been able for instance to challenge the process of

privatisation except but have only managed to extract some ameliorative measures. The

workers and trade union's weaknesses have also meant that though the right to form and join

a trade union are guaranteed by both the Constitution and 1993 law they have in many

instances failed to realise and enforce it in the face of recalcitrant employers and a State

ambivalent about enforcing the law.

2.0 THE TRADE UNION LAWS (MISCELLANEOUS AMENDMENTS) STATUTE

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a) WORKERS REPRESENTATION IN NRC

The genesis of this law is quite interesting. From 1974 when NOTU was formed it has always

demanded that civil servants (including medical workers, especially paramedics), teachers

and Bank of Uganda employees3 be allowed to unionise. The form of demands especially

from the fall of Idi Amin in 1978 had been petitions, memoranda and speeches on Labour

Days, during seminars and meetings with Ministry of Labour and other government officials4

In addition the crisis created by SAPS (Structural Adjustment Programmes) and the

beginning of privatisation and retrenchment had squeezed workers and union and pushed

them to the wall. This, according to some trade unions leaders, propelled them to demand to

be involved in the decision-making process on economic policies. Following the 1983

retrenchments during the UPC-Obote II first SAP programme for instance the issue of

representation for workers was first raised and the UPC-Obote II government began

nominating workers' representatives on Boards of Directors of public enterprises like UTC

(Uganda Transport Corporation) and NHCC (National Housing and Construction

Corporation). When the NRM came to power they expanded this, as a result of workers

demands, to other public enterprises like URC (Uganda Railways Corporation), UPTC, NSSF

(National Social Security Fund) and Uganda Fish-et Manufacturers Ltd.5

Workers also, through their trade union leaders began to agitate to be requested in Parliament

and made this demand through memoranda, seminar resolutions and representations to the

tripartite Labour Laws Review Committee that began sitting in 1989.6

However it seems that the specific demand to be represented in Parliament came about

because of NRM's own policy of wishing to incorporate all significant (especially organised)

political forces into its power structure. When NRM captured state power in 1986 under

Legal Notice No. l of 1986 the NRC (Parliament) consisted of unelected numbers only,

namely: the NRM Chairman (who was also Chairman of NRC), 38 other original NRM

members who had participated in the war that brought NRM to power (the so-called

"historical" members) and ministers appointed under the initial broad-based government

(Legal Notice No. l 1989, RU 1993:291). The idea of constructing a Corporatist government 3 Bank of Uganda employee were first prohibited from unionising by the Trade Unions Act (Amendment) Decree 29/1973, s.l(ff(1))4 Interview with E. Baingana, former Director of Research, NOTU 19861991, currently Education and Organising Secretary, UCEU (Uganda Communications Employees Union formerly Uganda Posts and Telecommunications Employees Union UPTEU), 21 December 1999.5 Interview with D.N. Nkojjo, Chairman-General, NOTU and General Secretary UCEU, 15 January 2000.6 Ibid., See also Labour Laws Review Committee, meetings... (Minutes)

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was conceived in the period 1986-1989. Accordingly Legal Notice No. l of 1986

(Amendment) Statute 19897 was passed 8and expanded the composition of NRC to include,

apart from the existing members; constituency representatives (at county or similar levels),

10 NRA (National Resistance Army) soldiers, a woman representatives per district, five

youth representatives "elected by an organised youth organisation representing all youth in

Uganda", twenty members appointed by the President on the NRC's recommendation and

"three workers' representatives elected by an organisation representing all workers in

Uganda".9

Indeed the dispute that broke out between the NRM Secretariat and the NOTU Secretariat

over the question: who would represent workers in Uganda in the NRC arose in the context of

the proposed expansion of the NRC arose in the context of the proposed expansion of the

NRC under Statute 1 of 1989 passed early (February) that year. This is how when Dr. Kiiza

Besigye, the then NRM National Political Commissar (NPC), was discussing the elections to

the NRC following the passing of Statute No. l of 1989, he argued for the formation of a

"new, democratic and more representative organisation of workers" rather than NOTU which

had been set up in 1978 under the Trade Unions Act (Amendment) Decree 197310 and which

was the only trade union centre allowed to exist by law and to which all Ugandan registered

trade unions were compulsorily affiliated.11

In its wisdom the NRM government had allocated five seats for the youth and three for the

workers.12 Dr. Besigye argued that "NOTU does not include all the workers of Uganda" and

that consultations were going on "to form a broader and more democratic worker's

organisation which will embrace all the workers in the country" and accordingly "the three

candidates to represent the workers in the NRC (would) come from that new body".13

Similarly consultations were also going on "for the formation of... broader national youth and

Women's organisations before their seats in the NRC (could) be filled".14 Dr. Besigye was

even of the view that sitting NRC members and Ministers could also "contest in the workers'

forum", because there were already "former trade union leaders in the NRC like Deputy

7 Statute 1/19898 It commenced on 9th February 19889 S.1(a-1), Statutel/1989.10 Decree 29 of 1973.11 See s.l(1) Trade Unions Decree 20 of 1976.12 Statute 1 of 1989; and New Vision 10 February 1989 "NOTU in Election Row".13 New Vision, Ibid.14 Ibid.

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Minister of Tourism and Wildlife, Robinson Kasozi".15

This position was vehemently opposed by NOTU and the affiliate unions. NOTU leaders

stated clearly that "their organisation would reject any candidate fielded to represent the

workers without NOTU's consent" and would "also fight and oppose whoever will attempt to

impose such candidates on the workers".16 The NOTU leaders further explained and made the

following observations:

(a) that NOTU was the sole legal body representing the country's labour movement having

been set up under Decree 20 of 1976;

(b) that NOTU had I S national affiliate unions representing various categories of workers

throughout the country;

(c) that NOTU's organisational structures were the oldest democratic social structures dating

from the colonial days;

(d) that NOTU was recognised officially and sent delegations to ILO meetings in Geneva and

spoke on behalf of workers on Labour Days;

(e) that they did not represent all the country's work force because some of the workers were

restricted from joining the trade union movement by law such as: civil servants, teachers,

doctors and nurses in government hospitals, academicians and all Bank of Uganda

employees.

f) that NOTU had its own democratic organisations which could organise elections for

workers' representatives to the NRC, namely a special delegates conference, the supreme

organ of the organisation.17

The NOTU leaders then made a more revealing statement challenging the NRM Secretariat

and the N.P.C.; they argued:

the misfortune is that our efforts are being misdirected towards political

squabbles over an imposed structural organisation of "a new worker's

organisation" and parliamentary seats instead of tackling broader and more

15 Ibid.16 Ibid.17 New Vision, Ibid, p.8.

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fundamental national issues that affect workers like the IMF/Kiyonga

budgetary programmes, redundancies in government departments and

parastatals and genuine democracy for workers.18

NOTU further contended that the NRM Secretariat was diverting their attention and energies

and engaging then "on new areas of struggle namely whether NOTU is a legitimate organ

representing all Ugandan workers or a new body be formed as an organ of the state" and on

the question "who should represent Labour interests in the NRC: trade unionists or politicians

outside labour?19 NOTU opposed the formation of another workers' organisation contrary to

s.l(1) of the Trade Unions Decree 1976. They further expressed dismay that "workers could

be given a representation by three people only when youth were given five" and demanded

that:

government repeals the present oppressive labour laws which prohibited civil

servants, nurses, teachers, academicians and Bank of Uganda star from joining

NOTU... Government had better respect these laws instead of charging that

NOTU is not embracing all workers when it is government restricting these

workers from joining the organisation.20

They opposed the creation of a rival organisation which was meant to be "on organ of the

state or a puppet trade union under a political organ" and charged that the "NRM Secretariat

had set up a worker's desk without consultations with the workers' Union".21

The strong opposition by NOTU to the NRM Secretariat's proposal to form a rival workers'

organisation jolted NRM leaders who beat a strategic retreat. The NPC, Dr. Besigye called a

meeting with NOTU leaders in which he "agreed to consult the government over the issue."

He would then "communicate the final decision to NOTU".22 In the mean time the

government set up a Ministerial Committee to study the matter. At the same time the N1uvI

Secretariat organised a meeting (DATE, 1989 or 1990) of all employees associations (both

professional and career associations) whose representatives came from all over the country

including: Uganda Civil Servants Association, Uganda Teachers Association, the Nurses

Association (?) and others. NOTU and its affiliate unions were also invited but the members

18 New Vision, 21 February 1989, "NOTU Challenges Besigye".19 Ibid.20 Ibid.21 Ibid.22 New Vision 3 March 1989, "Besigye Talks to NOT(7".

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representing the associations greatly outnumbered the trade Unionists. The meeting had about

1000 people and was aimed at defeating NOTU and the trade unions and creating a parallel

organisation/structure nation wide "to represent workers.23 But because NOTU had been

mobilising the associations with a view of transforming them into trade Unions and affiliating

to NOTU especially UTA, MUASA (Makerere University Academic Staff Association),

Uganda Teacher's Union (UTU, unregistered), Uganda Nurses and midwives Association,

and UCSA,24 the staff associations rejected the idea of sidelining, defeating and replacing

NOTU or ignoring it with respect to workers' representation in the NRC. According to one

trade unionist E. Kategaya (the NPC?) "was shocked and dropped the idea of not working

with NOTU.25 In this meeting it was resolved (?) to allow civil servants and medical staff in

government service to join trade unions although some of the associations like UTA and

nurses were divided on the matter.26 Several meetings and discussions ensued between NOTU

and government.

The Ministerial Committee composed of officials from the Ministries of Labour, Public

Service and Cabinet Affairs, Education, Finance, Teaching and Public Service Commissions,

Makerere University, Institute of Teacher Education (ITEK), Kyambogo, Uganda Civil

Servants' Association and the Chairman of the Industrial Court, came up with

recommendations in August 1990 that eventually appeared in The Trade Union Laws

(Miscellaneous Amendments) Bill indicating who and who should not join trade unions in the

civil service, teaching service, judiciary and institutions of higher learning.27

The trade unions disagreed with the categorisation of government as to who should or should

not join a trade union because to them many categories of public service employees were

unnecessarily being excluded from unionising. For instance contrary to what government had

proposed they wanted in institutions of higher learning "even principals, directors and heads

of departments (to) be allowed to unionise since all of them have no power to hire or fire

members of the teaching staff' and in the case of traditional civil servants they wanted that

"except for Permanent Secretaries and heads of divisions, the rest ...be allowed to join trade

unions" and that for teachers all should join trade unions.28 Whereas trade unions and workers

had for a long time struggled to have all workers hitherto excluded from unionising to be

23 Interviews with E. Baingana and D.N. Nkojjo, supra.24 Interview with E. Baingana, supra.25 Ibid.26 Interview with D.N. Nkojjo, supra.27 New Vision, 17 August 1990 "Civil Servants to join NOTU".28 New Vision 21 August 1990, "Workers want all officers in NOTU".

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allowed to join unions especially in the public service, the most significant force behind this

particular law seems to have been, clearly, the state. The main arguments therefore centered

on levels of unionisation but not the principle of unionisation or representation in parliament.

However, although the NRM government had provided for, among others, the representation

of workers in the NRC in 1989, as seen above, it did not succeed in having its way. The NRM

Secretariat failed to create a parallel and rival workers' organisation to NOTU. NOTU was

able to maintain its organic autonomy from the government and to thwart the government's

attempt to by-pass it or replace it as the legitimate representative of organised workers in

Uganda.

According to one veteran trade unionist involved in this struggle whereas government wanted

to incorporate them, the unions wanted "cooperation, not incorporation"; hence the struggle

to maintain their autonomy and representative role.2929 Presenting the report of the Select

Committee that considered the 1993 law in detail, its Chairman A.A. Ongom observed:

"Honourable members will recall that the Minister of Labour and Social

Welfare explained the purpose of the Bill. That was mainly to cater for the

election of representatives of the trade unions to this House and to the

Constituent Assembly. That is why it was necessary to bring this at this

stage .... However, I should also like to take this opportunity to reiterate that

this Bill was a result of the constitutional provision to the Legal Notice No. I

of 1986 and the Amendment Statute of 1989 which sought to expand the

Council and, inter alia, have three workers representatives.30

The Chairman of the Select Committee further argued that it was necessary to expand the

base of NOTU the only "umbrella of organised workers in Uganda." This included allowing

civil servants to unionise and other workers outside the framework of NOTU especially

teachers. In addition pressure from ILO was cited as reason for expanding the organisational

space of trade unions. The Chairman stated:

...Uganda was under constant pressure from the International Labour

Organisation (ILO) of which it is a member for excluding the employees of the

Bank of Uganda from joining trade unions. Uganda cannot afford to be an

29 Interview with E. Baingana, supra.30 NRC Debates, 5 May 1993.

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island in this region because Kenya Tanzania and Zambia have extended the

democratic rights to the affected groups. This Bill therefore seeks to

democratise and liberalise workers' participation in decision-making in matters

affecting them.31

It is also fairly clear that the Select Committee in its own words relied on and was persuaded

by advice from the Attorney-General, as well as "representatives of the civil servants ...

teachers and trade union leaders".32 But as we showed above government and eventually this

Committee of the NRC came to this position due to the consistent organisation and pressure

from NOTU and the Unions. The contribution of Hon.A. Tiberondwa who was and is a

trustee of the Uganda Teachers Association (UTA) was also significant regarding the attitude

of teachers to trade unionism, as we show below. The Chairman of the Committee also

revealed that the representatives of civil servants, teachers and other union leaders:

informed the Committee that the idea of unionising the civil servants and

teachers was initiated by Government (and) for these reasons they had no

choice".33

Here the colonial legacy of separating elite and professional workers from the mainstream

rank and file workers was being resurrected and was firmly at work because the teachers'

representatives argued that they could positively use the law "to be unionised professionally"

but would not wish "to be forced to affiliate to the union of teacher workers". In the same

vein, civil servants' representatives contended that they "would not like to affiliate to the

Public Employees Union".34 Indeed both groups:

wanted to be free not to join NOTU, rather they wished to form their own

apex(!)unions.35

The question of compulsory affiliation to NOTU indeed proved very contentions. As already

shown above the Trade Unions Decree 1976 makes it compulsory for every trade union to be

affiliated to NOTU. And all unions must be registered with the Registrar of Trade Unions.36

The Minister of Labour insisted that "no union will be recognised by government unless it is

31 NRC Debate 5 May 1993.32 Ibid.33 Ibid.34 Ibid.35 Ibid.36 S.8. Trade Unions Decree, No.20/1976.

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affiliated to NOTU. If this has got to be changed, the very first Bill which is coming to this

House, is the Trade Union Decree 20 of 1976. It is the one which has got that provision; that

would be the time for the House to address the issue if it so wishes, but not at this time

here".37

The representative of the professionalists Hon. A. Tiberondwa, opposed the existing law

arguing that,

this ...is a very serious matter; if we are not ready to form these unions, then we

should wait because many parts of the world that I know of professional unions are

not obliged to be affiliated to a central organisation of trade unions.38

He therefore proposed that affiliation to NOTU should be optional rather than compulsory

and the Trade Union Decree be amended accordingly. His proposition was, however,

defeated.

It would appear that the idea of professionalism being separate and distinct from unionism

was strongly felt by both the UTA (Uganda Teacher's Association) and the Uganda Civil

Servants Association (UCSA), but especially the former. They held the lower cadre worker in

the Civil service and in schools (especially primary schools) in low regard. Explaining their

position the Minister of Labour and Social Welfare A. Ejalu observed:

the question of the Teachers' Union and Civil Servants' Union not joining the existing

ones ...(is) that the teachers say "do not join us with the lower ones, we want our own

(Union - JB) alone". Even the civil servants, there is a Public Employees Union they

are now saying they should not join simply because the members who are there now

are of lower ranks.

The question of UTA or UCSA becoming trade Unions had arisen only obliquely. It was not

a direct demand from these two organisations. The impetus was from the state because it

wished to incorporate legitimate or credible workers' representatives into the NRC. Indeed in

the period 1989-1990, as we detailed above, government had hoped to use the professional

and career associations to create a parallel organisation of (both unionised and non-unionised,

unorganised) workers. Hon. A.A. Okurut put the matter this way:

37 Ibid.38 Ibid.

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We are discussing the question of enabling workers to be represented here. It

is right and mutual for this government to organise our workers and give them

a voice. This is the basic idea behind this amendment. Also we have been

criticised in ILO Conferences that we are being undemocratic, why do we not

free our workers, why do we not allow them to fight for their rights? And this

is what this amendment is doing. We are being democratic ....but when we

were talking about this question of having workers' representatives here again

NOTU realised that NOTU as constituted is representative of very few

workers. There are a lot of workers outside the NOTU umbrella because there

are many civil servants that have not been unionised, that have no voice; there

are many teachers... they have no voice. So the whole idea why NOTU; came

up with this amendment and which was passed in the cabinet is to democratise

and also liberalise the question of unionisation and see that... many that

constitute the workforce are unionised.39

The state thus presented itself as the force behind the expansion of levels of unionisation by

allowing hitherto non-unionisable categories of workers to be unionised, though as we show

below this was itself very limited. Secondly, which was in fact the prime aim of the state, it

presented itself as a democratising and liberating force for the workers by providing for and

allowing them to be represented in the NRC. The NRM/NRA had conceived its strategy of

reconstructing the state in a corporatist manner. The NRC essentially was to look like the

Tanzanian Parliament before multiparty politics, that is the one-party state parliament. Legal

Notice No. l of 1986 initially established the NRC and vested in it "the supreme authority of

the Government" and in particular legislative powers. As at 1986 the NRC consisted of the

Chairman (President Museveni), 38 original NRM members (the so called "historicals") and

ministers appointed into government. In 1989 under Legal Notice No.l of 1986 (Amendment)

Statute40 membership of the NRC was expanded. In addition to the above categories were

now added: 151 elected county representatives; 5 elected representatives of Kampala City; 14

representatives for each municipality; 10 NRA (Army) representatives; 38 elected women's

representative, one from each district and 20 members nominated by the President officials

from the Secretariat of the NRM.41 In addition the 1989 statute provided for the election of 5

youth representatives and "three workers' representatives to be elected by organised workers'

39 Ibid.40 No. 1/1989.41 41 See RU:291.

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organisation representing all workers in Uganda".42

In other words all significant social interests were to be represented and incorporated into the

NRM power structure, especially the NRC. This is how the CCM (Chama Cha Mapinduzi)

parliament of Tanzania before 199 .... looked like, the only difference being that the women,

youth, cooperatives, trade unions etc were also directly and organically part of the party. The

NRM preferred to call itself a Movement rather than a party, but significantly it did not allow

and has not allowed other political parties to operate. It sought to harmonise the interests of

all social groups at least in what was supposed to be an interim period 1986-1989, later

extended to 1996. Currently a referendum is slated mid-2000 to decide whether the

NRM/Movement continues as the only legitimate political organisation or whether the

country should go multiparty.

(b) EXPANDING THE RIGHT TO UNIONISE

At independence the right to form and join a trade unions was regulated by the Trade Union

Ordinance 1952.43 Under that Ordinance all workers in both the public and private sectors had

been free to form and join trade unions until the Public Service (Negotiating Machinery) Act

196344 allowed only junior public officers to join or belong to trade unions. In 1968 the

Public Service (Negotiating Machinery) (Amendment) Act45 removed the right of even junior

public officers from joining trade unions. Only the lowest Cadres, the group employees could

join trade unions. In 1973 Bank of Uganda employees were prohibited from joining trade

unions.46

Therefore as of 1993 all public service employees were excluded from joining trade unions

except group employees who had their (ineffectual) union, UPEU. In the private and

parastatal sector the levels of unionisation had always depended upon agreement between the

Union and the employer usually stipulated in the Recognition Agreement. The 1993 law

expanded the unionisation levels by removing the legal barriers in the following manner:

A) S.72 (2) of the Trade Union Decree 1976 had prohibited the army, police and

prison officers and personnel as well as employees of Bank of Uganda from joining

or belonging to a trade union.42 S.1 (k), Statute 1/1989.43 Ordinance No. 10/1952.44 No.78/1963.45 Act 24/1968.46 Decree 29/1973, supra.

13

The new law repealed that provision and instead provided that only members of the army,

police, prisons, local administration police as well as officers of ISO (Internal Security

Organisation) and ESO (External Security Organisation) could not join a trade union.47

B) Other categories of persons not eligible to be members of a trade union or an

employees' association affiliated to a trade Union were specified under the new

5.72(2)(c) into 5 categories:

(i) Officers in public service holding the following offices:

(a) Permanent Secretaries;

(b) Heads of Department, Division or Sections;

(c) School Headmasters and Deputy Headmasters;

(d) Principals or Directors of Institutions of Higher Learning;

(e) any other public officer who is on the salary scale U2 or an equivalent or

similar scale replacing that scale or who is above that scale;

(ii) officers of the Bank of Uganda holding the following offices:

(a) Governor;

(b) Deputy Governor;

(c) Secretary;

(d) General Manager;

(e) Heads of Department;

(f) Assistant or Deputy Heads of Department;

(g) Personnel Officers.

In other words apart from the above all the other employees of Bank of Uganda were

now free to join a trade Union.

(iii) Other officers and employees, whether or not in the public service holding the

following offices:

(a) Personnel Officers;

(b) Labour Officers;

(c) Industrial Relations Officers;

47 S.3of Statute 10/1993.

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(d) Chiefs

(e) Judges, Magistrates, Registrars of the Courts of Judicature

(iv) Persons holding the office of Personal Secretary to any of the offices specified

above in (i), (ii) and (iii), that is in those public offices, Bank of Uganda and to

personnel, labour and Industrial Relations Officers as well as to Chiefs and judicial

officers.

(v) It was also provided that officers or employees may be excluded from membership

of trade union or employees association

"by mutual agreement between an employer and the trade union to which such

officers or employees would otherwise belong".48

The effect of the above provisions was to liberate the overwhelming majority of public

service employees (mainly the traditional civil service) and allow them to join trade unions to

promote and protect their employment related interests. In addition it limited the area of

non-unionisable employees in the private sector only to a small group of people, namely,

personnel and industrial relations officers. Otherwise the voluntary nature of trade unionism

and collective bargaining was upheld in the provision cited above that workers could only be

"excluded from membership of trade unions and employees associations by mutual

agreement between an employer and the trade union to which such officers or employees

would otherwise belong." This was also a confirmation and improvement on the decision in

Amalgamated Transport and General Workers' Union vs. The Oil Industry Joint Industrial

Council of 198649 in which the court had overruled the wholesale exclusion of employees

from union representation simply because their duties were confidential or supervisory or

because they were professional or University Graduates.50

The main lesson here is that the workers, both in the public service and the private sector

were able to expand their organisational and associational space through the initiative of

government which had a narrower interest in amending the trade union laws - that interest

was how to incorporate the workers within the power structure of the 1`fRM/NRA. To do this

they needed a credible and reasonably representative NOTU. An earlier attempt to bypass

NOTU had failed and government was forced to work with it. NOTU being an umbrella of 48 See S. 5 Statute 10/1993.49 Trade Dispute Cause No. 3 of 1986.50 Ibid: 101-102. For a full discussion, see the award itself and J.J. Barya 1991: 18-19.

15

registered trade unions could neither be credible nor reasonably representative unless its

affiliates were credible and representative. Hence the need to allow hitherto excluded public

service workers (mainly civil service and Bank of Uganda) to unionise and also to clearly

state who could not be unionised in the private sector. In both cases the end result was to

greatly expand workers' association space. We shall see in Section 4 whether these workers

have been able to use this space or to what extent and why.

(C) THE RIGHT TO WITHDRAW LABOUR (STRIKES) IN THE PUBLIC SERVICE

One of the most contentious issues in industrial relations has always been the right of an

employee to withdraw labour in concert with others, or simply put the right to strike. The

Public Service Negotiating (Machinery) Act established a Joint Staff Council (JSC)51 which

was supposed to negotiate terms and conditions of service for public officers eligible to join a

trade union. The Act also makes provision for a dispute handling procedure52 and for strikes.53

Theoretically group employees (after 1968) or junior public officers (before 1968 when the

law was amended) could take part in a strike as long as they followed the negotiation

procedure under the Act.54 Otherwise going on strike without exhausting the negotiation

machinery rendered every officer or group employee to be "deemed to be guilty of

misconduct justifying summary dismissal.55 In addition no officer or group employee to

whom the Act applied was allowed to "take part in a strike which causes or is likely to cause

a cessation of work in any of the essential services specified in the First Schedule to this

Act".56 Any officer or employee contravening these provisions was liable to a fine not

exceeding Shs. 1,000 or imprisonment for a term not exceeding three months or both.57 This

also meant that whereas civil servants to whom the Act applied could not take part in a strike

without exhausting the negotiation machinery, those working in the stipulated essential

services in the public service could not strike at all or under any circumstances. But those

outside those essential services (like ordinary civil servants in Ministries) could actually go

51 Part II ss. 3-6, Cap. 278, Laws of Uganda.52 Ibid Part III.53 Ibid. Part IV.54 See S. 17 of Cap. 278.55 Ibid s. 17(3).56 Under the First Schedule to the Act, Cap. 278, Laws of Uganda, as amended by the Public Service (Negotiating Machinery) (Amendment) Act 1968, Act 26 of 1968, the essential services were: water, electricity, health sanitary, fire and hospital services, public transport services necessary or ancillary to these services and teaching services. Act 24 of 1968 added the supply and distribution of fuel petrol and oil services, public transport and teaching services.57 The fine of Shs. 1000 in 1963 when the Act was passed may be equivalent to about Shs. 250,000/= in 1999.

16

on strike so long as they followed the dispute handling procedures in the Act.

When the Trade Unions (Miscellaneous Amendments) Statute was being debated the fear that

unionising civil servants would encourage them to strike was raised. It was raised more

particularly in relation to levels of unionisation. On the other hand the professionalists, led by

Hon. A. Tiberandwa wanted civil servants and teachers not to form a union or at least not to

be affiliated to NOTU but rather to have their own special arrangements. He argued;

"It was also raised during the discussion (at committee stage JB) that while it

is good to unionise teachers and civil servants we should also look at the

ability of government to pay if the teachers resort to strike, or civil servants.

For example in Kenya at the moment the country is paralysed; but teachers

cannot strike because they are not affiliated to COTU and that keeps the

society running. But if you allow teachers and civil servants to be affiliated by

law without choice, to a central union of workers, if the union calls the strike,

then the government must be prepared to pay just as much as other private

organisations. So it was suggested during the discussion that membership or

affiliation to NOTU should not be compulsory as it is in the Decree No. 20 of

1976.58

Hon. Tiberondwa therefore suggested that in order to protect government from strikes by

civil servants in sensitive positions and to ensure that security was maintained but also

"in order to ease their situation and to make sure that someone fighting for

their rights, they are entitled, as in the past to form and belong to trade and

professional associations whose roles and conduct are very much different

from those of trade Unions.59

Indeed Hon. Tiberondwa pushed the argument further to say that in the interest of

professionalism head-teachers and their deputies and heads of departments and their deputies

should be allowed to unionise or belong to their professional associations.

The position taken by government in response was quite interesting. It was more propelled by

the desire to have workers represented in NRC than the fear of strikes. Accordingly the

chairman of the Select Committee contended that:58 NRC Debates, 5 May 1993. 59 Ibid.59 Ibid.

17

"the fear raised in the House that allowing civil servants to unionise would

allow them to disrupt essential services and the country will come to a

standstill were allayed (by the Minister) by informing the Committee that

there is an existing machinery that regulates the trade disputes in relation to

essential services.. the Trade Disputes (Arbitration and Settlement) Act (Cap.

200) as amended by Decree No. 18 of 1974 and the Public Service

(Negotiating Machinery) Act (Cap. 278)... I also mentioned here that while we

were debating this some of the civil servants were in the gallery whom we

interviewed and they thought that those fears were misled (sic!) because...

although they are in the civil service, they are responsible people and will not

like to see services of the Government or the country disrupted by merely

being made unionised members. So they thought that those fears expressed by

Members of this House were probably not properly guided.60

Instead government and the Select Committee were essentially concerned that only senior

officers in the civil service and schools and institutions of learning were not unionised. They

therefore opposed Permanent Secretaries, Under-secretaries, Principals Assistant Secretaries,

etc and Head teachers and their deputies being trade union members. It would appear that the

debate centred around civil servants' and teachers' unionisation because these were consulted

through the existing associations, namely UTA (Uganda Teachers' Association) and UCSA

(Uganda Civil Servants' Association). The interests of principals, directors and departmental

heads in Institutions of Higher Learning were not seriously discussed or for instance of

Chiefs and the judiciary. Even the associations UTA, UCSA and NOTU did not look beyond

their own immediate membership. For instance the Makerere University Academic Staff

Association (MUASA) active at that time did not make a direct input. The association

probably believed that being an organisation of top intellectuals they could get their demands

attended to without becoming a union.

60 Ibid.

18

3.0 ARTICLE 40 OF THE 1995 CONSTITUTION

Between 1988-1992 the Uganda Constitutional Commission gathered views across the

country regarding most of the possible provisions in the projected new Constitution. The

National Organisation of Trade Unions (NOTU) which is the single national centre to which

all unions are compulsorily affiliated gave in its views to the UCC. Significant among its

demands were: ......61 The UCC considered workers rights as part and parcel of the broad

rights and freedoms of the individual under the Bill of Rights. Of particular concern to the

workers was the right to autonomously organise, poor or inadequate renumeration and

condition of work and poor or no rights at the termination of employment.62 Summarising the

workers' bitter submissions to the Commission regarding state violations of their rights they

stated:

The rights to form and run independent unions have often been interfered with.

Governments have attempted to co-opt union aders within their ranks and to silence

the independent voices of workers. Their rights to organise strikes and collective

bargaining have often been interfered with and many leaders of the workers have been

imprisoned or prosecuted.63

Accordingly the Commission went ahead to recommend that workers' and employers'

freedom association be recognised and in particular, inter alia, workers' right to belong to

unions of their choice, to collective bargaining and to strike.64

Of much interest should be the fact that although the Commission made these

recommendations it never included them directly in the Draft Constitution.65 Only the general

freedom of association66 and the rights to safe and healthy conditions of work, equal pay for

equal work and rights to rest and holidays were provided for in the Draft Constitution.67

During the CA debate one of the only two workers' representatives in that House proposed

the amendments that would eventually become Article 40(3). Hon. P. Amandrua (NOTU

representative) proposed that in addition to the general freedom of association which includes

61 See the Trade Union Decree 20/1976, S. 1 (1) thereof.62 RU 1993:152.63 Ibid.64 Ibid:177-179.65 See RU:Draft Constitution 1993.66 Ibid.67 Ibid, Art.67.

19

"freedom to form or join .... trade unions",68 the following provisions were critical, and

necessary namely,

"Every worker has a right:

a) to form or join a trade union of his or her choice for the promotion and

protection of his or her economic and social interests;

b) to collective bargaining and representation; and

c) to withdraw his or her labour according to law".69

Of the 31 M.Ps who debated the motion in May 1993 the majority supported the Amandrua

amendments, that is 16 out of 32 (or 50%). Those who opposed it were 11 while the rest were

non-committal or raised other issues or thought the matter could be dealt with in other

provisions in the Constitution.

Interestingly many of the M.Ps who supported the Amandrua amendment were quite abreast

with the issues regarding workers' need for organisational rights in light of their weak

position vis-a-vis the employer, both local and foreign. Hon. Amandrua was supported by a

delegate from Arua Municipality, Zubairi Atamvaku who was also a Lecturer in Philosophy

at Makerere University.

The debate was much more focused, involved and extensive than the one which accompanied

the 1993 trade union law as we show below. Part of the reason could be that whereas the

1993 trade union law was initiated by the state and was aimed and furthering the interests of

the NRM regime in incorporating the workers' organisations and representatives into its

power structure and thereby minimise or neutralise a possible and organised source/forum of

political opposition, whereas the amendment in the Constitution was conceived by workers'

representatives in the Constituent Assembly.

Presenting the case for the amendments Hon. Amadrua put it simply

Mr. Chairman, when you look at these trade union rights, the workers' rights

have not been spelt (out-JB) here... if one reads this one will not know why or

68 Article 28(1)(e)1995 Constitution.69 Current Article 40(3), 1995 Constitution. Coupled with these provisions was a separate article that required "the employer of every woman worker... to accord her protection during pregnancy and after birth, in accordance with the law", Article 40(4), 1995 Constitution.

20

what trade unions and workers stand for and their objectives and rights. So the

purpose of bringing this amendment is to address this kind of silence on this

particular issue .

...this particular Article 59(e) puts trade unions together with politicians

(freedom of association - JB) and many others and we all know sometimes

anything can happen. May be one politician might say this clause should he

dealt away with and automatically trade unions will not be in existence. So for

this purpose we would like to have trade union rights like any other rights

which have appeared in other clauses be constitutionalised... that is why we

have brought this motion here and the reasons are that unions or trade union

rights and worker's rights to form trade unions and their objectives are spelt

(out) here.70

Hon. Amandruna also further argued, in a simple and unpretentious manner that the rights

sought were in ILO

Conventions (presumably already ratified by Uganda-JB) and that the amendment was

merely asking for

a worker's right to form and join a trade union of his or her choice for the

promotion and protection of his or her economic and social interests and the

right to collective bargaining and representation.

Finally he argued for the right to strike. Hon.Amandrua also argued that the right of every

worker "to withdraw his or her labour according to law" was very important and is covered

by ILO Conventions. The question had been brought to the C.A but not considered before

and that is why, as he had promised, "we have brought it back".71

The supporter of the amendment Hon. Z. Atamvaku based his support on three arguments. He

contended that although we need investments and investors also need some benefit from their

enterprises Uganda could not make laws to benefit only foreign investors but also workers.

He further contended in opposition to those arguing that trade union protection would

discourage both foreign and local investors as had happened in Britain72 that

70 RU: Proceedings of the C.A. Official Report, Wednesday 14th September 1994:2116.71 Ibid.72 S. Kakungulu, ibid.2117.

21

the crisis faced by the British economy today is not a crisis of labour unions

but is the generic crisis of the political economy of imperialism

(applause) ...the British economy was built on exploitation of other countries'

resources but today we have other powerful financial states who have

emerged to challenge their dominance of the world. That is the crux of the

crisis of the British economy, it has got nothing to do with any pro-trade union

laws.73

Those opposed to the amendment essentially argued that the workers' rights proposed were

lopsided and did not give equal opportunities to the employer. Obiga Kania for instance

argued that the proposed amendment

means that an employer will have no right to reject the demand of employees

to form a union. That to me gives more unequal right to an employee without a

fair share for the employer because what you are saying is, if I am an

employer I have no right to refuse the formation of a union or the bringing of

union services into my fnm ....74

Secondly those opposed also emphasised, as did Hon. P. Bageya that the Constitution was for

nation building, not running the nation. It was for encouraging investment. He observed

much as I sympathise with the Movers, I would like to state very clearly that at

this rate we... are going to send away the potential investors, looking at the

case where even government itself had to retrench workers. It has not

retrenched them because it did not need them but economic conditions have

forced Government to do that. Therefore would-be employers, if we put this

amendment in place, would have to think twice before they come to invest

here.75

The third and more critical argument was about the need for being consistent with

liberalisation policies and market forces. Hon. C. Kandole put it succinctly

...as a Government policy or a country we are already talking of liberalisation;

liberalisation of trade which naturally calls for liberalisation of labour, which

73 Ibid.: 2118-9.74 Ibid.: 2120.75 Ibid.: 2120.

22

naturally calls ...for competition. Now... if we are liberalising labour we

cannot come in and begin making these laws which are only protective... I

think eventually you find once labour is liberalised, then you are going to take

the best according to the requirements.76

Finally it was argued that there was either no need for the provision because the

employer-employee relationship was contractual and the right "to be hired implies the

inherent right to retire from employment"77or a clause providing for the employer to

terminate services would have to be included. Accordingly they contended, "these are merely

terms of employment which can be contained in the contract of employment ...(or) repetitions

....that would be contained in any legislation that would come subsequently (sic!) to the

Constitution".78 Following these arguments another employers' spokesman Hon. Sebaana

Kizito, in the same spirit, presented an amendment "to equalise" employer and employees'

rights. It stated

Every employer has a right to expect satisfactory work from his workers

(laughter).79

Sebaana Kizito strongly contended that

we are forgetting that workers can only be workers' if there are employers. We

are talking about the rights of workers but we are not talking about the rights

of employers anywhere in this Constitution... Therefore employers must be in

a position to be protected by law just as workers are being protected by the

same law. This is what I call equality and we are seeking for equality of

treatment in this Constitution.80

The employer's motion was quickly defeated. The arguments in response to the employers

demands were basically two namely, that Ugandans could not seek to protect foreign

investors first before protecting Ugandan citizens and delegates ought to represent the people

not their own views but workers and other people.81 In particular Dr. Byaruhanga argued that

76 Ibid.: 2122.77 Ibid, Wagidoso Madibo, 2124.78 Ibid.79 Ibid,: 2124.80 Ibid.: 2125.81 M. Pinto, 2123.

23

Since we are in a phase where exploitation must be expected, I believe that we

shall say it again and again in this Constitution that workers' rights be

protected.82

Secondly it was contended that though there are existing Conventions they have no bearing in

law unless "we pass counter legislation to implement that kind of Convention".83 The only

way that workers could be protected "is to include a provision in this Constitution and this is

what everybody is talking about. To say that you are repeating it, you can not say you should

keep this thing out of the Constitution because there is a law. The inclusion in the

Constitution makes it difficult for that agreement to be amended... at the whim of any

government that would come in power tomorrow".84

The Amandrua amendment was therefore passed in spite of strong employer opposition.

A number of lessons can be learnt from the enactment of this provision, the current Article 40

in the Constitution.

The new Article seems to have greatly and fundamentally improved the right to form and join

a trade union. This right is now unfettered unlike under the 1967 Constitution. The 1967

Constitution subjected the right to form or belong to a trade union to laws which are

"reasonably required in the interests of the national economy, the running of essential

services, defence, public safety, public order, public morality or public health,85; or "for the

purpose of protecting the rights and freedoms of other persons;86 or imposing restrictions

upon public officers;87 or "for the regulation of industrial or labour disputes;88"for the proper

management of trade unions..." ;89 or for the purposes of lawful detention or restriction of any

person.90 These restrictions either existed in the different legislations already in place before

the 1967 Constitution was promulgated or those that were to be enacted. They included: The

Trade Unions Act 1965 and that of 1970 and later the Trade Union Decree 1976; the Trade

Disputes (Arbitration and Settlement) Act, The Public Service (Negotiating Machinery) Act

and their various amendments. Apart from the question of strikes which is still regulated by

82 Ibid.: 2127.83 Ibid. A. Nekyon, 2127.84 Ibid.85 Article 18(2) (a) of the 1967 Constitution.86 Article 18(2) (b).87 Article 18(2) (c).88 Article 18(2) (e).89 Article 18(2) (f).90 Article 18(2) (d).

24

the Trade Disputes (Arbitration and Settlement) Act since labour can only be withdrawn

"according to law", all the other earlier restrictions under the 1967 Constitutions and other

laws have now been removed by the Constitution. (See J.J. Barya:1991 on recommendations

made).

How was this achieved?

First of all the workers' representatives in the CA though only 2 out of 284 delegates did

some preparation and lobbying of liberal CA delegates. Secondly this particular clause did

not cause a division along partisan lines: multipartyists versus Movementists. It was

essentially a class and ideological question. Employers (of either political grouping) generally

opposed the clause while the leftist CA delegates supported it.

Thirdly this particular clause did not appear to threaten the government, at least not directly.

In the CA government concentrated on areas that would enhance or threaten their hold onto

power such as: the question of political systems and federalism. Because the workers were

prepared and had enlisted the support of a number of delegates the state did not seriously

consider the implications of opening up and liberalising the freedom to form or join trade

unions. As we show later this constitutional freedom was to conflict with the government

policy of economic liberalisation and laissez-fare capitalism.

It should be pointed out that as it was later to transpire having the rights entrenched in the

Constitution is one thing; actually enjoying them is another. While it was relatively easy to

enact Article 40, putting it into practice against employers has been very difficult. We

discuss this question further when we deal with the problem of recognition vis-a-vis Article

40 of the Constitution and s.19 of the Trade Union Decree 1976 international ILO standards.

4.0. IMPLICATIONS OF THE 1993 TRADE UNION LAW AND ARTICLE 40 OF

THE CONSTITUTION

The 1993 Trade Union Laws (Miscellaneous Amendments) Statute read together with Article

40(3) of the Constitution, in principle, represent major strides in the arena of workers'

organisational rights. Our concern in this section is to show to what extent the expanded

associational space is useful and to what extent it has actually been used. And what explains

the successes and the failures so far in this regard? To answer these questions we look at

three issues/sub-questions:

25

(i) Of what importance has workers' representation in parliament, including CA and NRC

(1994-1996) been?

(ii) How has that representation and the expanded associational space helped workers to deal

with the whole problematic of privatisation?

(iii) How have workers/unions handled the problem of recognition in light of the provisions

of the new laws?

(a) WORKERS' REPRESENTATION IN PARLIAMENT AND C.A.

Following the passing of Legal Notice No. l of 1986 (Amendment) Statute 1989 and the

Trade Union Laws (Miscellaneous Amendments) Statute 1993, three workers representatives

were elected to NRC: M. Mukasa, J. Pajobo and Bakabulindi from different Unions. For the

C.A. two workers' representatives were provided for (Constituent Assembly Statute,

No.6/1993, S. 4(2)(h), First Schedule). The Constituent Assembly Statute 1993 is the only

law that first specifically recognised NOTU as the body representing workers. The 1989 law

expanding NRC and the 1995 Constitution (Article 78(1)(c) did not mention NOTU as the

organisation through which workers' representatives in parliament would be elected "in

accordance with the constitution of that organisation".91 To the C.A. NOTU elected P.

Amandona and Teo Ssentongo, whereas the workers' representatives to the current parliament

are: S. Lyomoki, Bakabulindi and J. Pajobo.

Although worker's representatives to the CA were only two they were able to table Article

40(3) and Marshall the support of the majority of CA delegates to their side. In spite of strong

employer counter proposals and direct opposition to Article 40(3), it was nonetheless passed.

This was because of effective lobbying and the general nature of the provisions. A more

detailed provision would probably have alerted most CA delegates to scrutinise it more

closely. In general terms also the NRM wished to present itself as a promoter and defender of

human rights (apart from the right of political association). This is why even other general

socio-economic rights were also provided for. For workers Article 40(1) also provided that

parliament shall enact laws:

"(a) to provide for the right of persons to work under satisfactory, safe and

healthy conditions;

91 S. 37(3) (d), Statute 4/1996.

26

(b) to ensure equal payment for equal work without discrimination;

(c) to ensure that every work is accorded rest and reasonable working hours

and periods of holidays with pay, as well as remuneration for public holidays".

In addition Article 40(4) also provided that

"the employer of every woman worker shall accord her protection during

pregnancy and after birth, in accordance with the law."

As far as the NRC concerned workers representatives were there for a short time (1994-1996)

before the present parliament and NRC work was generally overshadowed by the CA

(1994-1995) which was sitting at the same time before passing the new Constitution in

September 1995(?).

However, workers' representation in both the NRC and the current parliament may be

assessed together.

Workers' leaders are generally agreed that their representation in parliament is useful in spite

of under-representation. It is common ground that most people including M.Ps are generally

ignorant about workers' issues. The presence of workers' M.Ps ensures that workers concerns

and issues are brought on board and considered by parliament.

Secondly by being present in parliament workers' M.Ps can lobby fellows M.Ps and sensitise

them on workers' interests. They can also directly present and articulate workers

demands instead of relying on the goodwill of third parties as in the past.92

As a result of workers' M.Ps presence in parliament for instance, and as far as general laws

are concerned, the M.Ps have been able to score some successes. For instance in the Uganda

Communications Act (No.B/1997) and The Electricity Act (No. of 1999) Workers M.Ps

inserted clauses that protected workers employment rights, levels of remuneration, terminal

benefits and pensions. In transfer of services from UPTC (Uganda Posts and

Telecommunications Corporation) for instance to the new companies pending privatisation

UPTC workers were to do so "on similar or better terms to those enjoyed by those employees

92 See interviews with D.N. Nkojjo, supra, and M. Mukasa (former Secretary-General, NOTU) and General Secretary, NUCCPTE (National Union of Clerical, Commercial, Professional and Technical Employees) 22 January, 2000 and Hon. S. Lyomoki, General Secretary UMWU worker's and M.P, 17 January 2000.

27

before transfer".93 The retired and retiring employees were also assured of retirement benefits

and pensions and a Contributory Pensions Fund was to be put in place for the remaining

employees.94 The Electricity Act made similar provisions.

Secondly workers M.Ps are able to monitor the Executive and its actions to ensure

that workers interests are catered for or taken into account. The M.Ps were able to intervene

in the NSSF/Roko agreement for the completion of the NSSF (Workers') House. Roko had

refused to unionise its workers and the M.Ps and Building Union objected to its being

awarded the contract.95 Unfortunately it seems the Building Union itself failed to follow up

the matter or was compromised by Roko management, since to date no Recognition

Agreement has been signed although Roko was awarded the contract on this condition.

Workers M.Ps have been able to intervene in many management/worker disputes or Union-

management/ proprietor disputes and bring the two sides together or to a negotiating table

since most employers tend to take the workers' M.Ps more seriously than NOTU. The M.Ps

are seen to be more politically powerful and influential.

In short workers representation in parliament has been able to popularise workers interests

and the M.Ps have ever been able to achieve specific things. They also have the option of

bringing private members' bills where government stalls.96

Nonetheless the hurdles before workers' M.Ps are still enormous.

First of all, organisationally the M.Ps are not catered for within the NOTU structure, the trade

Union Laws and the Trade Union movement in general. Workers M.Ps were tacked on to the

NRM corporatist agenda and because the issue of their representation did not emerge from

the trade union movement itself, workers' M.Ps have no organic link with the trade union

movement apart from their own individual unions. Indeed no (clear) role is demarcated for

them in the Trade Union Decree, the NOTU constitution or any other individual trade union

Constitution. Thus there are no rules as to whom, when and how they should consult. To

whom are they supposed to report? NOTU has no provision for them, even at an informal

level. NOTU does not give them support for instance in terms of research facilities or

guidance on specific issues. Indeed at times a workers' MY has taken a specific position and

93 S.89, Act 8/1997.94 Ibid, S. 90.95 Interviews with S. Lyomoki and D.N. Nkojjo, Supra.96 Interview with Hon. S. Lyomoki, supra.

28

some NOTU leaders have opposed and condemned him!97

Secondly workers M.Ps are too few compared to the tasks before them. According to one of

them, S. Lyomoki although their electoral college is NOTU they are supposed to represent all

workers in the country, even those who are not members of any union. This has meant that

individual workers approach them directly or they become obliged to solve or intervene in

very many labour issues where there are no proper channels of consultation and

communication. And though they are supposed deal with workers' issues throughout the

country they are given the same facilitation as other constituency-based M.Ps. This means

they are not properly facilitated to carry out their mandate.

Thirdly the levels of education of the workers' M.Ps except one are much lower than, on

average, that of the other M.Ps. They therefore may not cope with the level of research,

organisation and articulation of issues by other M.Ps. They therefore may not cope with the

level of research, organisation and articulation of issues by other M.Ps. Closely related to this

is the fact that most M.Ps are employers "one way or the other" and usually take anti-worker

positions.98 This is why whereas many labour laws have been revised after tripartite meetings

and drafts have been prepared by the Ministry of Labour since the early 1990s none of the

over five draft labour legislation has been debated and passed. Even the overwhelmingly

unfair workmen's Compensation Act (Cap. Laws - of Uganda) as amended in 1969 has been

before the current parliament since its inception in 1996 but to date has neither been debated

nor passed.99 Instead in 1993 government picked only the issue of expanding levels of

unionisation and representation in NRC from the draft legislation and left all the other

recommendations for a later date.

Fourthly, the politico-economic environment is contradictory but generally unfavourable to

workers' organisations and workers' M.Ps. This is because many employers don't understand

the role of the labour movement and put unnecessary hurdles before it. They think it is "for

strikes rather than harmonious labour relations".100 Further in a situation of a one-party or "no

party" state where there is no opposition to government, the workers are presented with no

alternative to appeal to when the government is not advancing their interests. This is more

disturbing when the law allowing them to associate is quite liberal and favourable on the one

97 Interview with S. Lyomoki, ibid.98 Interview with M. Mukasa, supra99 Ibid.100 Interview with S. Lyomoki.

29

hand while the economic policies being pursued are generally anti-labour. The IMF/World

Bank-sponsored policies of privatisation, retrenchment, freezing of recruitment in the public

service and the other SAP conditionalities have undermined unions and enfeebled them

before workers. Their M.Ps find themselves unable to push for workers interests in the midst

of such policies pursued by IMF/World Bank and implemented by government.

Finally, one of the biggest hurdles for the trade union movement and workers' MPs is that the

union leadership nationally is politically, ideologically and strategically demobilised.

Although historically the trade Unions have tried to adopt an independent line from the state

and to organise and act autonomously101 it has no clear and definitive socio-political agenda

to advance and defend. This is why they are numb on important political questions. They lack

a political policy.102 This is why they had no policy on the referendum, on the political

organisations Bill, on the Other Systems Act, on the whole problem of privatisation, as we

show below, on annual Budgets and other issues that affect workers directly or indirectly. On

the other hand however other unionists like M. Mukasa103 argue that lack of a common

political position or policy on major political issues is a result of an inherently weak trade

Union movement, representing a small fraction of Uganda's essentially peasant population.

Trade Unions/Workers are, unlike in most other countries, not sufficiently organised to state

and defend political positions they may wish to take. For instance he was of the view that

most workers and union leaders are opposed to the referendum on political systems, as it

seeks to take away the right of political organisation and dissent, but are afraid to say so

because government would use its supporters in the trade union movement to disorganise

and/or defeat the trade unions.104 Hence the cautious timid-looking approach.

In brief the expansion of workers' organisational space was important and significant. Their

representation in parliament provides opportunities for advancing workers interests but

amidst great hurdles that must be overcome before that representation can become more

meaningful.

(b) HANDLING THE PROBLEMATIOUE OF PRIVATISATION

One of the biggest problems that has confronted the labour movement in the last decade

(1990-2000) the world over, but particularly in Africa, has been the question of privatisation 101 See J. Barya 1990; Interview with M. Mukasa, supra.102 Interview with S. Lyomoki, supra.103 Interview, supra.104 Ibid.

30

as part of SAPs and the broader neoclassical policies of economic liberalisation put as

conditionalities by multilateral financial institutions and bilateral "aid givers". In Uganda the

question of privatisation became critical with the passing of the Public Enterprises Reform

and Divestiture Statute105 in 1991.

The role of workers and their Union leaders and M.Ps on this question is being assessed

before and after the 1993 laws expanding unionisation and inviting 3 workers M.Ps into

parliament.

In general there has been popular opposition in Uganda to the whole programme of

privatisation. Some oppose it on principle because it is argued that a poor underdeveloped

country like Uganda cannot rely on market forces to develop the economy and provide

employment. Conscious government intervention is necessary. Others have opposed not so

much the principle but rather the methods and practices of the privatisation process.

According to some trade unionists the NRM government on this point developed a culture of

ignoring popular social opinion and sentiments, the views of many M.Ps and the position of

workers and trade Unions.106 The Unions were opposed to the privatisation of UPTC for

security and strategic reasons and TUMPECO (with a monopoly of making vehicle number

plates) for the same reasons; Nile Hotel and International Conference Centre, Coffee

Marketing (CMB) and Uganda Commercial Bank (UCB) among others. The sale of Nile

Hotel and UCB and the problems attendant to those sales have so far vindicated the workers

because partly because of mismanagement by the new owners (Tunisians and Malaysians

respectively) but more so because of the underhand methods and procedures of the sales the

two enterprises have been repossessed by government about two years after privatisation.

Government is still hoping to re-privatise them. In case of CMB although over 10,000

workers were made redundant, CMB non-core assets sold, the main plant still stands unsold

because now it does not have much value since most private Coffee processors and exporters

have their own small plants.107

Thus government did not have clear policies and procedures to ensure proper and

fruitful privatisation of many enterprises. Above all although NOTU has advocated for an

employment policy for the country none exists. Thus privatisation takes place in the context

105 No. of 1993.106 Interview with M. Mukasa, Supra.107 Ibid.

31

of no employment policy. Indeed due to union pressure the Ministry of Labour obtained

funds from ILO in 1994/1995(?) to develop an employment policy but after reorganising a

few seminars, the whole thing fizzled out. At the same time nonetheless the Ministry of

Labour itself has been abolished and reduced to a mere department under the Ministry of

Gender, Labour and Community Development, since 1996.108

Compared to other countries that have carried out privatisation the government in Uganda did

not make any significant preparations for retraining and redeployment nor did it ensure that

even existing legal and contractual obligations for workers were satisfied before privatisation

(See J. Muwawu 1999 for details). Instead government has even signed contracts with buyers

of the former public enterprises guaranteeing that there is no obligation with respect to

existing employees or terms and conditions of new recruits (See .... UPTC Divestive

Documents, J.Muwawu, and Interview with Baingana).

In this situation what role has the expanded associational space and the three M.Ps for

workers played? The expansion of Unionising space for the public service made the workers'

representation in parliament relatively more representative of workers and this is why one of

the three M.Ps is from one of the new unions registered in 1994, the UMWU.

The presence of workers M.Ps in Parliament has however been able to ameliorate the

hardships of privatisation mainly after 1996. When the PERD statute was passed in 1993 the

workers were not represented and indeed little attention was paid to workers interests. The

only provisions relating to workers simply state...

All the botched privatisation cases were essentially commenced before 1996. But since 1996

(with the new parliament) workers M.Ps have been able to lobby and persuade other M.Ps

about taking workers' interests and rights seriously in the whole privatisation process. Having

mishandled the earlier sales/divestitures parliament has been more conscious in the

privatisation of Uganda Airlines, UPTC, and UEB.109 Other major enterprises pending

privatisation are likely to be better handled for instance. URC, Sheraton Hotel, Kilembe

Mines, National Housing and Construction Corporation, et cetera.

The workers M.Ps have also been able to insert pro-worker clauses, as seen above in the

Communications Act and the new Electricity Act. At times because information on

108 Ibid, see also New Vision 1996.109 See Interviews with D. Nkojjo & S. Lyomoki, supra.

32

privatisation is more readily available to M.Ps they have been able to advise relevant union

leaders to prepare themselves better in negotiations for privatisation. In other instances where

privatisation has already taken place and the new owners want to undermine workers and

union interests workers' M.Ps have intervened as they did in the case of Hotel Equatoria and

UTC workers.110

It would appear therefore that workers' M.Ps have not been able to stop and fundamentally

change the nature and course of privatisation but rather aspects of its content with regard to

workers' interests especially terminal benefits and rights after privatisation. Mere

representation in parliament has not in itself helped workers and unions to deal with the

fundamentals of privatisation.

(C) THE ISSUE OF UNION RECOGNITION

The issue of recognition is a basic and fundamental one for any trade union because without

recognition a trade union cannot bargain collectively with the employer. As we argued in

section 3.0 above under the 1967 Constitution the right to form and join a trade union was

subjected to many exception.111

Under the 1995 Constitution those exceptions were removed and as such the freedom to form

and join a trade union is now unfettered. However the provisions of the Trade Union Decree

1976 contradict the constitutional provisions. The most important provisions in the Decree

which are a fetter to unionisation are:

a) The requirement under s.8(3) that in order to be registered every trade union must

have not less than one thousand registered members;"

b) the provision under s.19(1)(e) that

"every employer shall be bound to recognise a registered trade union to which

at least 51 per cent of his employees have freely subscribed their membership

and in respect of which the Registrar has issued a certificate under his hand

certifying the same to be a negotiating body with which the employer is to

deal in all matters affecting the relationship between the employer and those

110 See Sessional Committee on Social Services: Report resolution on former UTC workers; workers M.Ps have also pressurised the owner of Hotel Equatoria to begin negotiations for recognising the Hotels Union; see also Interview with S. Lyomoki, Supra111 Article 18, 1967 Constitution.

33

of his employees who fall within the scope of membership of the registered

trade union.

It is important to rote that as a result of complaints from trade unions, on the

unconstitutionality of the above two provisions, to the Ministry of Labour, in 1997 Uganda's

Attorney-General gave an opinion that agrees with the trade unions. The Attorney General

was of the view that:

Articles (1)(e) of the Constitution provides that every person shall have a right

to freedom of association which shall include freedom to form and join

associations or unions, including trade unions. This right is further reinforced

by Article 40(3) of the Constitution. Furthermore article 36 of the constitution

provides that minorities have a right to participate in decision -making

processes. Sections 8(3) and 19(e) of the... Trade Unions Decree are

inconsistent with articles 29(1)(e), 36 and 40(3) of the Constitution. Article

2(2) of the Constitution provides that if any other law is inconsistent with any

of the provisions of the Constitution, the Constitution shall prevail, and all the

other laws shall, to the extent of the inconsistency, be void. Clearly the quoted

provisions of the said Trade Unions Decree are void since they, in terms of the

quoted constitutional provisions, curtail the right of persons to form or join

trade unions.112

In spite of the above legal position by government's legal counsel trade unions continue to be

refused recognition even when they have fulfilled the requirements of the old law particularly

by organising and recruiting more than 5 I % of workers in a given enterprise or firm.

In the past decade 1990-2000 most trade unions have been losing rather than increasing on

their membership as a result of liquidation of some enterprises, privatisation and change of

employer especially with the return of properties expropriated from Asians in 1972-1973 by

Idi Amin which were returned to them in the 1990s. The problem of recognition arises:

a) when a public enterprise is privatised and the new owner is given freedom to

recognise or not recognise an existing union;

b) when a new enterprise is set up by foreigners (usually called "foreign 112 Letter from B.M Katureebe, Minister of Justice /Attorney General to The 3rd Deputy Prime Minister, Minister of Labour and Social Welfare, dated 9th September 1977.

34

investors") or by (few) local people;

c) when a union recruits membership in any existing enterprise and asks for

recognition; and

d) when new unions are registered especially after the 1993 law and recruit

members in hitherto non-unionable enterprises or employment areas and seek

recognition such as the case of UMWU and UCSU.

The experience with regard to recognition of unions has been very negative throughout the

1990s in spite of both the 1993 law and the constitutional provisions in place since 1995.

First of all although both UMWU and USCU were registered with the Registrar of Trade

Unions in 1994 to date the government has not yet signed any Recognition Agreement has

not yet signed any Recognition Agreement with them. Meetings have been taking place

between these unions and government but a number of hurdles still exist because the unions

and government still disagree on many issues. However in spite of lack of a formal

Recognition Agreement the UMWU has been able to reach some understanding with many

local district administrations to grant them a check-off arrangement whereby their members'

monthly subscriptions are deducted and paid to the union. Recognition Agreements have

however been signed with a few private hospitals. This has been possible because of the

vigilance and commitment of the leaders of this particular union.113

Secondly many employers have in spite of the law refused to recognise unions even in

enterprises where unions existed before they were privatised and/or changed ownership. The

most significant examples are in the textile, hotel and construction industries. The Uganda

Textile, Garments, Leather and Allied Workers' Union (UTGLAWU) was, up to the end of

the 1980s, one of the biggest and most significant unions. It had union members in 13

companies with a total membership of 17,140.114 By the end of 1996 its membership had

reduced to 2420 in 16 companies/factories but is recognised by only one textile company, the

Uganda Fish-Net Manufactures Ltd. which was also threatening to withdraw its recognition

of the union like the rest. In the biggest textile company NYTIL 9000 workers lost their jobs

in preparation for its privatisation. The new owner NYTIL Picfare has refused to recognise

the Union. The agreement for the sale of the assets of NYTIL (Nyanza Textile Industries Ltd) 113 Interviews with S.Lyomoki and M. Mukasa, supra.114 See ILO: Complaint against the Government of Uganda presented by the International Textile Garment and Leather Workers' Federation (ITGLWF), Report No. 316, Case No. 1996, ILOLEX).

35

and Government provided, among other things, that

the purchaser shall be at liberty to take on any person formerly employed by the seller

on such terms and conditions as the purchaser may agree with such employee; and the

purchaser shall not be bound by any arrangements or contracts made by the seller with

any trade union and shall not be liable for any claim regarding unionised workers

previously employed by the seller.115

This particular clause seems to have strengthened NYTIL Picfare in refusing to recognise the

union in spite of its having 1,100 members in the Company. Because it is one of the biggest

textile companies the other textile companies have followed suit and refused to recognise the

union.116 The issue has been reported to the Industrial Court for determination.

The hotel industry especially those hotels owned by one Karim Hirji have persistently refused

to recognise unions. However as a result of concerted pressure from NOTU, the Hotels

Unions and Workers' M.Ps as well as some donors, this particular owner has agreed to enter

negotiations with the Hotels Union regarding Recognition Agreements. Some donors,

particularly FES (Friedrich Ebert Foundation) had sometime in 1998 decided and publicised

the decision that they would not support any activity with their partners (trade unions, NGOs

and Civil Society Organisations generally, etc) if it was held in hotels that do not recognise

trade unions.117 Thus concerted pressure even without government support using S.19(1)(e) of

the Trade Unions Decree can produce results.

In the case of the construction and other industries examples abound relating to

non-recognition. The usual problem is that workers leading the Unionisation drive are usually

victimised by dismissal, demotion or transfer where possible. One of the interesting examples

in the construction industry has been the case of Roko Construction Ltd. and the Building

Union. In 1999 when the NSSF (National Social Security Fund) building contract was up for

bidding ROKO was one of the companies that put in its bid. Yet NSSF building is a workers'

house being built from workers' NSSF monthly contributions. And Roko had refused to

recognise a Union in its workplace. The Building Union, NOTU and Workers' M.Ps wrote to

the Minister of Labour advising him not to award the contract to Roko unless it recognised

the union. Meetings were held with the Minister of Labour and ROKO and it was agreed that 115 Quoted in Ibid.116 Ibid.117 Information within the authors knowledge, following his various dealings with FES; and Interview with S.Lyomorei.

36

ROKO had to recognise the Building Union before it could be awarded the contract; but

somehow in-between the Union leadership agreed that ROKO could be awarded the contract

and the Recognition Agreement would be signed later. To date it has not been signed.

Apparently the union leaders was either tricked or compromised118 into this situation. The fact

that the union has not seriously pursued the matter for several months may point to the latter.

In conclusion it would seem that the 1993 law and the 1995 constitutional significantly

expanded the association space available to workers in forming and joining trade unions to

advance their labour-related interests. The associational space was expanded initially because

of government interest in including workers in its corporatist strategy. When this space was

opened government did not find it easy to use it as they wished. It also became a weapon in

the hands of the workers and unions.

Due to their numerical weakness both in the country and in parliament workers have not been

able to effectively respond to the problems of privatisation in their own interests. However

the presence of M.Ps for workers in parliament has at least, from 1996 onwards, averted the

worst and recorded some successes. Lobbying, planning and organisation have been

responsible for most of this success.

The question of recognition has clearly unearthed the contradictory nature of the

government's policies. Whereas freedom of association is proclaimed and guaranteed by the

Constitution and buttressed by the 1993 trade union law, the logic of the neo-liberal

economic policies being pursued negates that right. Belief in market forces determining the

worker-employer relationship with little state intervention threatens to undermine the rights

clearly laid down on paper. This implies that the struggles by workers and trade union need to

be handled in a more sophisticated and holistic manner that takes into account and deals with

government policy in general and not on a piecemeal basis as has so far been the case.

5.0 SOME PROVISIONAL CONCLUSIONS

This study has shown a number of things and raised issues for further research and debate.

We may from the analysis above make the following provisional conclusions:

1. Trade Unions had for a long time demanded to be involved in the decision-making

processes of the state and were initially allowed and given representation on Boards of

118 Information obtained from various trade union leaders, December 1999.

37

Directors of public enterprises. The initiative to have workers representatives in parliament

was a result of NRM's corporatist strategy and not directly a result of workers' or unions'

demands. However what is interesting is that although the NRM wanted to create a separate

body of workers through which the workers be represented in NRC the unions were able to

resist such a state-sponsored and controlled body and maintained their organisational

autonomy. This was a result of unity on the issue in the trade union movement.

2. Although the workers were divided on the question of unionisation between

traditional professional and white-collar employees (civil servants and teachers associations)

on the one hand and mainstream unions as the meetings organised by NRM and NRC debates

on the 1993 law showed, eventually the idea that unionisation was the way forward

triumphed. The attempt to divide workers on this narrow elitist basis failed although so far a

dispute among the teachers between UTA and UATU exists as both have applied to the

Registrar of Trade Unions for registration and neither of them has been registered as yet.

Hopefully they will resolve their differences and register as one union.

In fact because the issue of workers joining the NRC was a state initiative no one seriously

opposed it in the NRC. Instead the only voices against it were the professionalists (civil

servants and teachers, especially the latter) who either did not wish to be unionised or if

unionised wished to be separate from the mainstream unions and not affiliated to NOTU.

The workers and trade unions have been able to use the expanded associational space only to

a limited extent. Taking the examples used as a guide the expanded space has in itself been

insufficient to help them confront the fundamental issue of privatisation, massive

redundancies and lack of new job opportunities. They have been unable to successfully

confront the neo-liberal economic policies of government prodded by IMF, World Bank and

bilateral donors.

However the unions have been, to a large extent, successful in ameliorating the adverse

effects of privatisation since 1996/1997 by utilising workers' M.Ps in parliament to sensitise

fellow M.Ps, lobby them and intervene on behalf of workers with respects to their rights

affected by the privatisation process. A number of rights for workers have been entrenched in

some laws privatising certain public enterprises. Workers and unions in yet-to-be privatised

enterprises should be able to utilise this experience.

3. The liberal trade Union law of 1993 and the Constitutional provisions on workers

38

freedom of association (Article 29(1)(e)) and in particular freedom to form and join trade

unions of their choice for the promotion of their economic and social interests are quite an

achievement for Ugandan workers. However these legal rights are contradicted in practical

terms by the neo-liberal economic policies that emphasize market forces as the major

determinants of employer-employee relations and industrial relations in general. Thus very

many employers (especially the new "foreign" investors and the Asians that repossessed the

properties expropriated by Idi Amin) have been able to refuse to recognise trade unions in

spite of the fact that such refusal is in most cases illegal and unconstitutional. One of the

biggest challenges for trade unions therefore, today, remains how to challenge these

neo-liberal economic policies and to enjoy and advance the existing legal and constitutional

rights.

39

BIBLIOGRAPHY

Barya B.J.J.

1990: Law, State and Working class organisation in Uganda 1962-1987, Ph.D thesis,

University of Warwick.

1991: Workers and the Law in Uganda, CBR Working Paper No. 17.

Constitutions of the Republic of Uganda 1962, 1967, and 1995.

ILO 1988 Complaint Against the Government of Uganda Presented by the International

Textile, Garment and Leather Workers' Federation (ITGLWF), Report

No.316, Case 1996. ILOLEX.

Interviews with

(i) E. Baingan 21 December 1999

(ii) S. Lyoomoki 17 January 2000

(iii) M. Mukasa 22 January 2000

(iv) D. N. Nkojjo 15 January 2000

Muwawu J. 1999 : The Impact of Privatisation Labour Rights in Uganda, LL.M thesis,

Makerere University.

NRC (National Resistance Council Debates 5 May 1993 (Mimeo, Unpublished).

New Vision (News Paper).

RU (Republic of Uganda) 1993: Report of the Uganda Constitutional Commission - Analysis

and Analysis and Recommendations, UPPC, Entebbe.

RU (Republic of Uganda) 1995: Proceedings of the Constituent Assembly, Official Report,

UPPC, Entebbe.

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